Hoskin v. State
Decision Date | 15 June 2022 |
Docket Number | 3D21-2300 |
Citation | 341 So.3d 443 |
Parties | Derrick V. HOSKIN, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Derrick V. Hoskin, in proper person.
Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
Before EMAS, MILLER and BOKOR, JJ.
Derrick Hoskin appeals the trial court's order denying, as untimely, his postconviction motion to withdraw plea. We reverse, because the trial court erred in treating the motion as one filed pursuant to Florida Rule of Criminal Procedure 3.170(l ), rather than one filed pursuant to Florida Rule of Criminal Procedure 3.850(a)(5).
The relevant facts are straightforward and are not in dispute: On January 20, 2017, Hoskin entered a negotiated plea to three separate cases—a 2010 probation case, a 2011 probation case, and a 2016 case (the latter serving as a basis for a violation of Hoskin's probation in the 2010 and 2011 cases).1 Hoskin pleaded guilty to the three felony counts in the 2016 case (and admitted to violating his probation in the 2010 and 2011 cases). His probation was revoked, he was adjudicated guilty of all charges, and he was sentenced as a habitual felony offender to ten years in state prison. The sentences imposed in all three cases were to run concurrently.
Just short of two years later (January 16, 2019), Hoskin filed a "Motion for Postconviction Relief Withdrawal of Guilty Plea," which sought to withdraw his plea based upon ineffective assistance of his trial counsel. Hoskin's motion claimed that trial counsel rendered ineffective assistance by inter alia, failing to adequately investigate the case, failing to contact key witnesses, failing to move to suppress certain evidence and statements, and in coercing Hoskin into pleading guilty and admitting that he violated his probation.
The trial court treated the motion as one seeking to withdraw the plea pursuant to rule 3.170(l ), which provides:
A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence , but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.
(Emphasis added).
In turn, rule 9.140(b)(2)(A)(ii)(a)-(e) provides the following:
(Emphasis added.)
The trial court denied Hoskin's motion as untimely because it was not filed within thirty days of sentence rendition as required by rule 3.170(l ). And while the trial court was correct that the motion was untimely under rule 3.170(l ), it erred in failing to treat the motion as one timely filed under 3.850(a), which provides a separate postconviction vehicle for seeking to vacate or set aside an involuntary plea based on ineffective assistance of counsel:
(Emphasis added.)
Generally, a motion seeking relief under 3.850(a) is considered timely if filed within two years after the judgment and sentence become final. See Fla. R. Crim. P. 3.850(b). Hoskin's motion was timely under rule 3.850, and was cognizable under that rule.2
See, e.g., Davis v. State, 154 So. 3d 1203 (Fla. 2d DCA 2015) ( ); Jackson v. State, 801 So. 2d 1024 (Fla. 5th DCA 2001) ( ); Gafford v. State, 783 So. 2d 1191, 1192 (Fla. 1st DCA 2001) ( ). See also Hutchinson v. State, 29 So. 3d 1228 (Fla. 3d DCA 2010) ( ); Tatum v. State, 27 So. 3d 700 (Fla. 3d DCA 2010) (same); Miller v. State, 905 So. 2d 981 (Fla. 3d DCA 2005) ( ); Maura v. State, 469 So. 2d 150 (Fla. 3d DCA 1985) ( ).
It appears Hoskin's motion may fail to meet some of the pleading requirements under rule 3.850. Under such circumstances, "the trial court shall enter a nonfinal, nonappealable order...
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